Trump Impeachment Trial in the Senate: Caught Between Politics and Law

Abstract

Some may argue that the trial should be conducted like a criminal trial, with the Bill of Rights fully invoked. In this view, President Trump should not be compelled to testify. The Senate would find it sufficient to judge Trump based on the testimony of other witnesses it might call, limited by the work already done by the House in what they have sent over to the Senate. Yet that ignores the key contextual differences with other House Impeachments, that the President, or judges, as the case may be, had already cooperated with the House during its investigations, by providing evidence, witness statements, and documents in support of their side of the case. It is hard to see from the history of Senate impeachment trials, that if the Senate felt it necessary to call witnesses, how other witnesses who heard the President tell them what to do, could avoid testifying (their testimony is not hearsay under FRE 801, as it is an admission of a party, in this case, the President., and any executive privilege would likely fail in the face of the Senate’s judgment of what it needs for a fair trial. The White House may yet itself see its way to the need to protect the Office of the President, by working out a compromise. Otherwise, the Senate should be forced to preserve its powers to protect its right to exercise appropriate Congressional oversight. In 1933 the Senate determined that the Senate, not the Chief Justice, determines whether depositions will be taken of witnesses for impeachment trials, in lieu of their live testimony. But the House Managers agreed that this was sufficient, in light of what it worked out with the particular respondent. The Senate ought to have an interest in working something out with the President to protect its power going forward, but finally, the Chief Justice might also have responsibilities concerning the trial. After all, majorities change in the Senate. If the Senate chooses to ignore its Constitutional responsibilities going forward, in light of the short term political gain of protecting the President, it would create a strong argument for the Senate to do the same with other Presidential impeachments. Finally, there is nothing in the Senate rules and precedent that would foreclose the House Managers from taking up the matter with the Chief Justice. Perhaps, then, it still behooves the President and Senate majority to cooperate with the House, going forward, in order that the President can present his defense, and still protect the integrity of the Senate, and Congress as a whole; that it full fill its responsibilities to conduct a fair trial and responsibly exercise its oversight capacity of the Executive branch of government. Where such a compromise has not been worked out, it falls to the Chief Justice to ensure a fair trial.